Updike v. City of St. Louis
| Decision Date | 06 February 1888 |
| Citation | 6 S.W. 689,94 Mo. 234 |
| Parties | Updike v. The City of St. Louis, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. George W. Lubke Judge.
Reversed and remanded.
Martin Laughlin & Kern for appellant.
(1) The instructions asked by defendant at the close of the plaintiff's case should have been given, for the reasons following: (a) Possession of the premises by defendant was not proved or attempted to be proved. (b) The deed of trust from the Union Steam Mills Company to Wm. H. Maurice's trustee, of July 19, 1882, was not effective to convey the premises sued for; they are not described in the deed. (2) The instruction given at the instance of plaintiff at the close of the case, that plaintiff on the pleadings and proofs was entitled to recover, is erroneous. (a) It is in conflict with instruction six, given at the instance of defendant. (b) The case was closed without proof of possession on the part of the defendant. The Merchants' Elevator Company was in possession, and is still in possession of the portion covered by the ordinance in reference to switching; the company was and is in possession of the strip on which the track is now laid, under the other ordinances. (3) [a] The assignee Lockwood, abandoned the lease and surrendered all right and claim thereunder, permitting the Merchants' Elevator Company to pay the rent and have possession of the premises. The assignee was estopped, and the plaintiff claiming from him is likewise estopped, from claiming any rights under the lease. (b) The deed of trust of July 19, 1882, under which plaintiff claims title, recognizes the validity and continued existence of the deed of trust of 1875 as an incumbrance on the lease of 1879. This recital estops the plaintiff from claiming the premises.
Given Campbell for respondent.
(1) The judgment was for the right party. The plaintiff shows a chain of title, clear and unbroken, in himself. No legal defence is shown by the city to this action. (2) The points relied upon in the brief of appellant are unsound. The description in the deed of trust from the Union Steam Mills Company to Maurice's trustee is sufficient. McPike v. Allman, 53 Mo. 551; Shewalter v. Pirner, 55 Mo. 218; Charles v. Patch, 87 Mo. 450; Wiggins Ferry Co. v. City of St. Louis, 88 Mo. 615. (3) The answer was a general denial, and in such case the court was more than liberal in allowing any evidence tending to establish estoppel. Estoppel in pais must be specially pleaded. Bray v. Marshall, 75 Mo. 327; Hammerslough v. Cheatham, 84 Mo. 13, 21. Admissions made under a misapprehension against one's legal rights, without the purpose of influencing the action of another, and not shown to have had that effect, do not estop the person making the admission from afterward asserting the truth. Hull v. Cavanaugh, 6 Mo.App. 143-149; Spurlock v. Sproule, 72 Mo. 508; Acton v. Dooley, 74 Mo. 63-69; Monks v. Belden, 80 Mo. 639-642. Johnson shows by his own testimony that he did not act upon the admission or statements alleged to have been made by Lockwood. He never knew him till after the sale, and there is no evidence that he ever heard of any talk by Lockwood, and certainly there is no evidence that he ever relied on, or supposed that he was getting more than the trustee, Mr. Kern, sold, or more than his deed called for. Hence, there was no case for estoppel. Bales v. Perry, 51 Mo. 49; Noble v. Blount, 77 Mo. 235-242; Monks v. Belden, 80 Mo. 639-642. But independently of all this, the evidence would not support a defence of estoppel if it had been properly pleaded. (4) The point that the recital in the deed of trust, of July 19, 1882, which plaintiff claims, recognizes the validity and continued existence of the deed of trust of 1875, under which Johnson bought, and that Lockwood, the assignee, is estopped thereby, cannot be upheld. (5) The city is lessor, and in an ejectment brought by its lessee against the city for possession of the leased premises, where the city had for years received rent for the premises, it will not be permitted to say that the lease is invalid, any more than would such defence avail the lessee when sued for rent. Grant v. White, 42 Mo. 285; Tabin v. Brodher, 51 Mo. 148; Hoyle v. Bush, 14 Mo.App. 408. This was a judicial sale, and any alleged irregularities cannot be set up in an ejectment, or inquired into collaterally. Hewitt v. Weatherbee, 57 Mo. 279; Mitchell v. Nodaway County, 80 Mo. 257; Grover v. Smith, 49 Mo. 324; Howard v. Stevinson, 11 Mo.App. 410. The irregularities complained of were inadmissible in ejectment. Holland v. Adair, 55 Mo. 40; Bray v. Marshall, 75 Mo. 329. The assignee was bound by the recitals in his deed. McDonald v. Schneider, 27 Mo. 405.
OPINION
This ejectment involves the right to the possession of an unexpired portion of a ten-year lease upon a part of the public wharf in St. Louis. It appears the city made two leases upon the property, each for a period of ten years, the one ending and the other beginning on the first of January, 1879. During the first lease, the Union Steam Mill Company, a corporation then in possession of the property, made a deed of trust thereon to secure a debt by it owing to Wm. H. Maurice. The property thereby conveyed is described as the Union Steam Mill, situated at the foot of Florida street on the public wharf, the right to use which was acquired by Henry C. Yeager from the city by lease, etc., and also all the buildings, machinery, belting, tools, brands, and other appurtenances to said mill. After the expiration of the first lease, and in August, 1884, there was a sale under this deed of trust, and James B. Johnson, for himself and others, purchased the property. Johnson and his associates organized the Merchants' Elevator Company. The city then made a lease to that company of another parcel of land, and as a part of that arrangement, the elevator company agreed to and did remove the old steam mill from the property in question; and the elevator company surrendered possession of the property in question to the city, save that part occupied by railroad tracks.
The plaintiff's title is as follows: The second lease, which was made by the city to the...
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